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Legislative Assembly for the ACT: 2002 Week 5 Hansard (7 May) . . Page.. 1187 ..

MRS CROSS (continuing):

the bill does not contain intent but rather focuses only on actions;

proposed new subsection 23 (2) could never give rise to a breach of the act;

the bill should introduce the concept of potential parenthood rather than potential pregnancy; and

proposed new subsection 23 (2) is unnecessary to achieve the policy objective.

The committee's comments centre on the example used in the notes on clause 8 in the explanatory memorandum of a woman in a job interview being asked about her intentions or desires to become pregnant at some future time. Discrimination would then occur when the answers to such questions were used as selection criteria for the job. As currently written, the explanatory memorandum does not clearly explain and illustrate the provision in clause 8. This portion of the explanatory memorandum has subsequently been rewritten to provide a clear example. I seek leave to table a new explanatory memorandum.

Leave granted.

MRS CROSS: I present the following paper:

Discrimination Amendment Bill 2002-Supplementary explanatory memorandum, dated 7 May 2002.

I shall speak briefly to each of the four points raised by the committee.

It would be inappropriate to include intent in this bill. The act as it currently stands is structured in such a way as to list certain characteristics in a single section. The issue of intent is thus contained in a single section. To provide for intent in sections other than section 8 of the act would be inconsistent with the way the act is structured. The notes on clause 8 in the explanatory memorandum inadvertently uses the words "An example will be an employer who in an interview intended to ask a woman", when the correct phraseology is "an employer who in an interview asks a woman". As already indicated, the explanatory memorandum has been rewritten to reflect this.

The committee considered too narrow a view of proposed subsection 23 (2). The original explanatory memorandum is unclear in the way the example is used, but the provision nonetheless stands. The committee considers that the circumstances of an interview of a prospective male employee are different because a man cannot be asked whether he has a desire to become pregnant. Therefore, it is concluded, a breach of the potential pregnancy provision could not occur.

While the comment is true in the narrow sense the committee has described, a prospective employer could legitimately ask both a man and a woman more subtle questions about planning for a family or intended changes in lifestyle.

Further, the committee did not take into account a situation where prospective employees are women and a younger woman is asked direct questions about potential pregnancy whereas an older woman is not.

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